Summary: Ms X says the Council is at fault in how it considered her son’s application for home to school transport. The Ombudsman has found fault in the way the Council considered its decision to refuse transport assistance. To remedy the injustice caused, the Council has agreed to apologise to her and pay her £100, and to consider any application and/or appeal for transport from Ms X’s new address with regard to the correct tests. It has also agreed to review its Home to School Travel Assistance Policy.

The complaint

1. Ms X complains about the Council’s decision not to provide her son with school transport. She says the Council has applied a blanket policy that it is appropriate for parents to accompany a child of her son’s age to school. She says it has failed to properly consider her circumstances. She considers that the Council has failed to properly consider Y’s transport application in accordance with the statutory guidance and that it is unreasonable and discriminatory for the Council to expect her to accompany a child of her son’s age to school.

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The Ombudsman’s role and powers

2. We investigate complaints about “maladministration” and “service failure”. In this statement, I have used the word “fault” to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as “injustice”. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. As part of my investigation, I have considered the notes of the previous investigator’s conversation with Ms X and all the information she provided. I have had regard to the relevant legislation and guidance and the Council’s policy. I have considered the Council’s response to the previous investigator’s enquiries and the comments from Ms X’s representative and the Council on the draft decision sent by the previous investigator. I have also sent a revised draft decision statement and considered Ms X’s and the Council’s comments.

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What I found

Relevant law and guidance

Special Educational Needs

6. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.

Suitable transport for eligible children

7. Councils must make arrangements to provide suitable free school transport to those “eligible” children of statutory school age who:
• attend their nearest suitable school and live further than the statutory walking distance. This is two miles for children aged less than eight years old and three miles for children eight and above.
• are from a low-income family, defined as receiving free school meals or in receipt of the maximum Working Tax Credit. These children are entitled to free school transport if their nearest suitable school is more than two miles away if they are aged eight to eleven.
• cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs or disability. Eligibility for such children should be assessed on an individual basis to identify their particular transport requirements. Usual transport requirements (e.g., the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to special educational needs and/or disability. (Education Act 1996 section 508B and Schedule 35B)
8. Councils also have discretion to make provision for non-eligible children where they consider it “necessary” to facilitate the child’s attendance at school. (Education Act 1996 section 508C)

Statutory Guidance

9. The Government also issued statutory guidance in July 2014 to local education authorities on home to school transport. This says:
• When determining whether a child with special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account of a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 17)
• The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 18)
10. For a council’s school transport arrangements to be suitable they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 35)

The Equality Act 2010

11. Local authorities must comply with the Equality Act 2010. The Equality Act prohibits a local authority from discriminating against someone on the grounds of a “protected characteristic”.
12. The Act also places a legal obligation on the local authorities to comply with the public sector equality duty. This means they must consider how their home to school transport decisions and policies affect people with protected characteristics, and must have due regard to the need to:
• eliminate discrimination against people with protected characteristics;
• promote equality of opportunity between people who have a protected characteristic and those who do not; and
• foster good relations between people who have a protected characteristic and those who do not.

The Council’s policy

13. At the time of the application and appeal, the Home to School Travel Assistance Policy September 2019 was in force. This was replaced by the September 2020 policy. The relevant sections of both policies include:

“4 Eligibility Criteria

For the purposes of section 508B (travel arrangements for eligible children), Schedule 35B of the Education Act 1996 defines “eligible children” – these categories of children or young people will always be given travel assistance by Royal Greenwich if they are…

• Unable to walk to school by reason of their SEN, disability or mobility problem (including temporary medical conditions)…
• Have any other exceptional circumstances (applicable to each case and considered on a case by case basis).

4.4 Travel assistance for children and young people with Special Educational Needs and/or Disability (SEND) of compulsory school age

4.4.2 The statutory minimum walking distance (calculated using Google maps) for children or young person with SEND to be eligible for assistance from Royal Greenwich are: -

• 2 miles from school for children aged eight years or under
• 3 miles from school for children aged eight years or over

4.4.3 In addition to considering the distance from the child or young person’s home to school, Royal Greenwich will also consider: -

• The needs of the child.
• The complexity of the home to school journey.
• The use of public transport whenever possible and appropriate.
• Promoting independent travel and travel training.
• Promoting a healthy approach to travel assistance as far as possible by encouraging the child or young person to walk to school.
• The most cost-effective travel assistance arrangements.

7.4 Making the decision

7.4.1 In making decisions about travel assistance, Royal Greenwich will take into account all relevant legal considerations and guidance. Royal Greenwich will also take into account any exceptional circumstances of which the following are examples…

• vulnerability of child or young person
• a child who has complex health needs…
• Parental disability

7.4.2 The following will not normally be considered exceptional circumstances:

• difficulties caused by parents/carers attending work or looking after other children
• difficulties for parents/carers getting children to or from collection and drop off points unless they have significant disability of health needs.

7.4.3 Each case will be considered on its own merits and examples listed here are not exhaustive and do not automatically qualify or disqualify a child or young person.”

Background

14. Ms X is a lone parent who does not drive. She is mother to her son, Y, and his younger twin brothers.
15. Y has autism, attention deficit hyperactivity disorder and asthma. He is impulsive, has low awareness of danger and can run into the road. At school and at home, Y needs constant supervision and cannot travel without being escorted. Ms X says he is affected by noisy environments. Y received school transport from the Council to attend his primary school.
16. Y was due to start secondary school in September 2019, so Ms X applied for travel assistance. On her application, she explained about the family’s circumstances including her son’s disability-related needs, that Y’s siblings were due to start primary school and she would not be able to get all her children to school on time.
17. The Council’s travel panel considered Ms X’s application. It said it had considered the points that Ms X had raised and the distance from his home to his school (which at 0.8 miles was within the statutory walking distance). It decided it would not provide school transport and that Ms X would need to make her own arrangements for Y’s transport to school.
18. Ms X asked to appeal against the Council’s decision. The Council replied that with the correct strategies in place Ms X would be able to make the journey with Y. It said she could ask Y’s school for help managing the journey and she could ask the twin’s school about breakfast clubs to help her.
19. Ms X remained unhappy and submitted a stage two appeal. The review was carried out by the Director of Health and Adult Services who did not uphold her appeal because:
• Y was nearly 11 and, although he had difficulties travelling, he would gradually begin to need to become more independent; and
• it was not unreasonable for Ms X to accompany him to school, even though she also had to take his siblings to school.
20. The Council said there was no evidence to suggest Y could not walk safely to school for 15 to 20 minutes if accompanied. It reiterated that Ms X could seek assistance from her children’s schools to help her manage the journeys.
21. Ms X was unhappy with the decision and approached us. We found fault with how the Council considered her appeal because it was not carried out by a panel and she had not been given the opportunity to address the panel, as recommended in the statutory guidance.
22. The Council agreed to reconsider her stage two appeal. It wrote to Ms X asking her to submit any evidence she would like the appeal panel to consider. However, Ms X did not supply any further information.
23. The appeal was considered in November 2019. Ms X attended and addressed the panel and was supported by an official from Y’s school.
24. Ms X told the panel:
• It was dangerous to travel with all three children as they all required holding and supervision.
• Y had always had one-to-one support although she would like him to become more independent and she considered school transport would facilitate this.
• Y did not always want to walk and on these occasions, she had to get two buses instead. Y’s behaviour on the bus could be challenging and she could not manage his behaviour using his tablet or music. He also did not always want to go to collect his siblings from school.
• She did not have time to settle Y’s siblings at school and this was detrimental for them. She said their school had suggested the breakfast club would not be able to support them.
• Previously she had a childminder for the twins, but she was now unemployed and could not afford the expense.
• The stress of the school journeys was impacting on her own health, in particular her diabetes.
25. The official from Y’s school also added that walking to and from school made Y anxious.
26. The panel refused Ms X’s request and said school transport would not be provided. It said that it would expect a child of Y’s age to be accompanied to school by a parent in accordance with its School Transport Assistance Policy.
27. Minutes from the panel meeting show it reached this view because:
• There were no exceptional circumstances regarding the twins. It was expected that parents/guardians would use other support to get children to school and these had not been fully explored.
• The twins’ school could provide support via a breakfast club and could arrange for Ms X to collect them from an alternative entrance to make the school journey easier.
• Ms X could use the twins’ Disability Living Allowance (DLA) payments to fund a childminder for them.
• Y needed help to manage his behaviour and his school should be asked to provide support and a travel plan to support his independence. It did not consider that providing school transport would help make Y more independent.
28. The panel made several recommendations including that it would write to the twins’ school regarding arrangements to help Ms X and provide her with information from its childminding team. It also said it would ask Y’s school to provide positive behaviour support to help promote his independence and develop a travel plan as part of his annual review.
29. Y’s annual review was delayed because of the COVID-19 pandemic and was completed in July 2020. It says Y has been engaging in weekly travel training and that he is aware of road safety. He crosses the road with good observation and using the Green Cross Code, albeit monitored by staff. Y can also remember travel routes and plan routes.
30. Ms X was unhappy with the panel’s decision and approached us again. In the meantime, she has since moved home and re-applied for transport.

My assessment

Could Y reasonably be expected to walk to school because of mobility problems or because of associated health and safety issues related to his special educational needs or disability?

31. Y’s EHCP does not refer to any physical mobility issues and Ms X has provided no evidence suggesting otherwise. However, his awareness of danger is low, and he can run out into the road and approach strangers. Ms X has also explained that he will sometimes refuse to walk to school and will have to be taken by bus.
32. The hearing notes show that the panel concluded that there is no reason that Y cannot get to school accompanied by a parent. But the panel first needed to reach a view as to whether Y could reasonably walk to school. This required it to consider not only his physical ability to walk but whether there were behavioural or other issues which meant that it was not reasonable to expect him to do so. The notes do not indicate how frequently Y would refuse to walk, so I do not see how the panel could reach an informed view as to whether it would be reasonable for him to do so.

Was it reasonable to expect Ms X to accompany Y, taking account of a range of factors including Y’s age and whether one would normally expect a child of that age to be accompanied?

33. I note that the panel concluded that it would be appropriate for a child of Y’s age to be accompanied to school.
34. In response to the Ombudsman’s enquiries, the Council said that it considers it appropriate for parents/guardians to accompany their child to school up to the age of 18, the legal age of parental responsibility, if appropriate and necessary. It also referred to section 1.31 of its policy which says:

“Parents/carers are responsible for ensuring their child attends school. This may include making or assisting with travel arrangements to and from school and/or accompanying their child. No dispensation can be made for parents who are working at the time their children travel to and from school, or who have other children to get to school. Parents are expected to make other suitable arrangements for someone else to accompany their children as necessary.”

35. The Council has since stated that it considers all applications on a case-by-case basis with regard to the information available to it. It says it did so in this case, although it accepts that the weight given to all the evidence was not properly reflected in the decision letter.
36. It would not typically be the case for a child of secondary school age to be accompanied and the panel did not set out why it considers it would be reasonable to do so. This was fault and the Council should ensure that its decisions demonstrate how it has taken relevant factors into consideration.

Did the Council consider the individual circumstances of the case with reference to the correct test?

37. I note that the panel considered the family’s individual circumstances in relation to the twins, but it was not agreed that there were “any exceptional circumstances in terms of [Y]’s siblings”.
38. The Council has pointed to sections 4 and 7.4 of its policy as evidence that it properly considers the exercise of discretion in considering such cases.
39. Section 4 of the Council’s policy says (my underlining) that travel assistance will be provided where children are “unable to walk to school by reason of their SEN, disability or mobility problem…” or “have any other exceptional circumstances”.
40. However, when considering eligibility for transport assistance for children with SEN or a disability, the Council must consider applications and appeals using the correct test. The correct test when considering its statutory duty under Section 508B of the Act is whether it is reasonable to walk (and reasonable for a parent to accompany) not the inability to walk or whether there are exceptional reasons to provide transport. (Likewise, the correct test for providing a pupil support escort in such a case is one of reasonableness rather than “impossibility”). This was fault – the Council failed to apply the correct test when considering its statutory duty towards eligible children.

Are Y’s travel arrangements safe and reasonably stress free, to enable him to arrive at school ready for a day of study?

41. Ms X has explained that Y sometimes refuses to walk, and that his behaviour can be challenging when they need to take the bus (which can be busy and noisy). Moreover, the school has commented that walking to school makes Y anxious.
42. The panel discussed support to manage Y’s behaviour and felt that providing a bus would not encourage his independence, but there is no evidence that it considered whether the current arrangements were adversely affecting Y when attending school. This was fault.

Did the Council only take relevant factors into account?

43. When considering Y’s application, the panel said that “Ms [X] can look for a Childminder to help her with the Twins in the morning – she is now receiving DLA which is to be used for additional support required”. The Council has since explained that the issues with getting Y and the twins to school were interlinked and the panel explored a range of options in this regard. However, it accepts that Ms X should not have to use the DLA paid to her for the twins for the sole purpose of facilitating Y getting to school.
44. While I note the Council’s subsequent explanation, it seems clear that the panel gave some consideration to the fact that the twins’ DLA might be used in part to facilitate Y’s attendance. This was irrelevant to the provision of travel assistance for Y and was fault.
45. I note also that section 4.4.2 of the Council’s policy refers to the statutory walking distances when considering transport eligibility for children with SEN/disabilities. Any child who meets the statutory age and distance criteria is eligible for travel assistance, but these criteria are not relevant to the consideration of eligibility on SEN/disability grounds. This is fault - the Council’s policy is at best misleading in this regard.

Did the Council have regard to the Equality Act?

46. There is nothing in the Council’s policy or in the hearing notes to indicate that it had regard to the Equality Act in considering Y’s application for transport.
47. This was fault. When reaching decisions which involve people with protected characteristics, the Council should have regard to its duties under the Equality Act.

Agreed action

48. For the reasons set out above, I consider that there was fault in the way the Council decided not to provide Y with school transport. To remedy the injustice caused the Council has agreed:
• within four weeks of my decision on this complaint to apologise to Ms X for the fault I have found and the time and trouble she has been put to in pursuing her complaint and pay her £100 in recognition of this;
• within three months of my decision on this complaint, to review its policy to address the concerns discussed in paragraphs 32, 36, 40, 42, 45 and 47.
• when considering any new application or appeal for transport by Ms X for Y to and from their new home, to ensure that it considers this with regard to the correct test as discussed in paragraphs 32 to 47 and has regard to any additional information Ms X supplies, including any concerns that she may have about Y and herself having to use public transport during the COVID-19 pandemic (given their medical conditions).

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Final decision

49. I have closed my investigation into Ms X’s complaint on the basis that the Council has agreed to act on my recommendations.

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Investigator's decision on behalf of the Ombudsman